Karnataka High Court
Sonnegouda vs The State Of Karnataka on 23 April, 2015
Author: Mohan M. Shantanagoudar
Bench: Mohan M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF APRIL 2015
PRESENT
HON'BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR
AND
HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
CRL.A.NO.147 OF 2010
BETWEEN:
1. SONNEGOUDA
S/O. LATE NARAYANASWAMY
AGED ABOUT 32 YEARS
OCC: BUSINESS
R/A. 1ST MAIN ROAD
HEBBAL KEMPAPURA
BANGALORE - 560 024.
2. MAHESH
S/O. LATE G. MUNEGOUDA
AGED ABOUT 33 YEARS
OCC: BUSINESS
R/A. VENKATEGOUDA EXTENSION
HEBBAL - KEMPAPUR
BANGALORE - 560 024.
3. KITTI @ KRISHNA
S/O. BORANNA
AGED ABOUT 38 YEARS
OCC: CQAL EMPLOYEE
R/A. VENKATEGOUDA EXTENSION
HEBBAL - KEMPAPUR
BANGALORE - 560 024.
4. KISHORE @ MUNNA
S/O. VITTAL NAYAK
2
AGED ABOUT 28 YEARS
OCC: MECHANIC
R/A. NEAR PRESIDENCY COLLEGE
HEBBAL - KEMPAPUR
BANGALORE.
5. ANJINEGOUDA
S/O. LATE CYCLE SHOP NARAYANAPPA
AGED ABOUT 45 YEARS
OCC: BUSINESS
R/A. KODIGEHALLI
BANGALORE.
6. ANJINAPPA
S/O. RAMAIAH
AGED ABOUT 42 YEARS
OCC: BUSINESS (PROVISION STORE)
R/A. KAVERI NILAYA
NEAR AYYAPPA TEMPLE
HEBBAL - KEMPAPUR
BANGALORE.
7. SRINIVAS @ CYCLE SHOP SRINIVAS
S/O. MUNIYAPPA
AGED ABOUT 38 YEARS
OCC: BUSINESS (CYCLE SHOP)
R/A. NEAR BHUVANESWARI TEMPLE
VERMA LAYOUT, KEMPAPURA
BANGALORE.
8. M. UMESH
S/O. MADHU
AGED ABOUT 29 YEARS
OCC: BUSINESS
R/A. DASARAHALLI MAIN ROAD
HEBBAL - KEMPAPUR
BANGALORE - 560 024. ...... APPELLANTS
(BY SRI. H.S. CHANDRAMOULI, ADV., FOR APPELLANTS
SRI. RAVI B NAIK, SR. COUNSEL FOR
SRI. AMAR CORREA, ADV., FOR A2 AND A3)
3
AND:
THE STATE OF KARNATAKA
BY THE POLICE OF
HEBBAL POLICE STATION
BANGALORE CITY.
.... RESPONDENT
( BY SRI.VISHWESHWARA, HCGP)
THIS CRL.A. IS FILED U/S 374(2), CR.P.C. PRAYING
TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE DATED:3/4.2.2010 PASSED BY THE P.O., FTC-
IX, BANGALORE IN S.C.No.365/2007 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S. 143,
147, 148, 302 R/W 149 AND SEC. 120-B OF IPC ETC.,
THIS CRL. APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT THIS DAY, PRADEEP D.
WAINGANKAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence dated 3.2.2010 passed in S.C.No.365/2007 on the file of Presiding Officer, Fast Track Court -IX at Bangalore. By the impugned judgment, accused Nos.2 to 4 and 6 to 10 were tried and convicted for the offences punishable under Sections 143, 147, 148, 120-B, 302 r/w 149 IPC and have been sentenced to undergo imprisonment for a period of six months and to pay fine of Rs.1,000/- each and in default to undergo 4 imprisonment for one month for the offence punishable under Section 143 IPC, to undergo imprisonment for a period of one year and to pay fine of Rs.2,000/- each, in default to undergo imprisonment for two months for the offence punishable under Section 147 IPC, to undergo imprisonment for a period of two years and to pay fine of Rs.3,000/- each, in default to undergo imprisonment for three months for the offence punishable under Section 148 IPC, to undergo imprisonment for a period of six months and to pay fine of Rs.1,000/- and in default to undergo imprisonment for one month for the offence punishable under Section 120-B IPC and to undergo imprisonment for life and to pay fine of Rs.10,000/- each for the offence punishable under Section 302 IPC r/w 149 IPC.
2. The prosecution case in brief is as under:-
The complainant Manjunath PW-20 and deceased Santhosh were friends. There was enmity between accused No.1 and deceased Santhosh in connection with milk business. In order to take revenge on the deceased, 5 accused No.1-Jagadeesh Gowda was waiting for an opportunity. On 1.4.2006, at about 8.30 p.m., Manjunath PW-20 and Madhu-PW-21 had gone to Shakti bar, Hebbal to have dinner. At that time, Praveen, Prakash and deceased Santosh were there in the bar taking food. PW-20 and PW-21 joined them. At about 11.00 p.m., after taking food, all of them came out from the Shakti bar. Prakash, deceased Santhosh and Manjunath went in Pulsar motor cycle belonging to Santhosh. They dropped Prakash at Hebbal and thereafter PW-20 Manjunath and Santhosh came to Kempapura on Pulsar motor cycle. Manjunath was riding the motor cycle. They came near the shop of one Sridhar. Since he was not there, they met Prakash and spent ½ hour in the company of Prakash. Thereafter, PW-20 and deceased Santosh left for Lingarajapura on Pulsar motor cycle. On the way, when they reached near Coffee Board junction on main road, a white qualis vehicle came from behind and dashed against rear side of the motor cycle, as a result of the impact, deceased Santosh fell down on the road and the rider Manjunath fell down into a gutter alongwith the motor 6 cycle. All of a sudden accused No.1 who was driving the qualis vehicle stopped and all the inmates who were the henchmen of accused No.1 suddenly got down from the vehicle and armed with deadly weapons like long, choppers and rod assaulted deceased Santosh mercilessly. When PW-20 Manjunath requested them not to assault the deceased, they assaulted Manjunath also. After assault, accused No.1 drove the qualis vehicle over the head of deceased Santosh causing his instantaneous death. All the accused fled away from the scene of occurrence. PW-20 who had suffered injuries contacted Praveen over mobile and informed him about the incident. Immediately, Prasad came on the motor cycle and saw deceased Santosh who was dead. PW-20 was shifted by Prasad and one Govind PW-31 to Baptist hospital for treatment. Dr. Raghunath-PW-34 of Baptist hospital forwarded the medico-legal intimation Ex-P11 to Hebbal police station. Immediately, the Police Inspector-R Mohan- PW-35 of Hebbal police station rushed to the Baptist hospital and recorded the statement of PW-20 Manjunath as per Ex-P10 in the presence of Dr. Venkat PW-12 and 7 registered the case in Cr.No135/2006 of Hebbal police station against four to five unknown persons and forwarded the FIR Ex-P40 to the jurisdictional Magistrate. He visited the scene of occurrence, drew up spot panchanama Ex-P17, whereunder he seized M.Os.9 to 15 bloodstained mud, sample mud, iron rod, blue colour slipper, mudguard, blood stained blue pant respectively. He conducted inquest proceedings as per Ex-P16 over the dead-body of deceased Santosh and recorded statement of witnesses viz., Anand and Ravi. He forwarded the dead- body for post-mortem examination. He recorded further statement of PW-20 Manjunath, wherein he disclosed the name of all the accused Nos.1 to 10 as the persons who committed murder of deceased Santosh and injuries to him. He secured Ex-P9 the wound certificate of PW-20 from Baptist hospital, spot sketch Ex-P15 from PWD engineer, PM report Ex-P12, IMV report Ex-P27. He recorded the statement of PW-21 Madhu, Praveen, Prakash, he secured information regarding the qualis KA- 04-D-7774(M.O.7) and seized the qualis at Attibele under panchanama Ex-P39. The accused were apprehended at 8 various places on different dates. He recorded the voluntary statement of accused and at their instance, recovered weapons used for the commission of the offence which were concealed in a Maruthi car. He secured the opinion of the finger print expert as per Exs-P23 to P25 and upon completion of all formalities of investigation, charge-sheet came to be filed against accused Nos.1 to 10 for the aforesaid offences.
3. The accused having denied the charges levelled against them, the prosecution in all examined 36 witnesses as PW-1 to PW-36, marked Exs-P1 to P60 apart from M.Os.1 to 21. On behalf of the defence, sketch was marked as Ex-D1. The learned Sessions Judge on appreciation of evidence recorded a finding that the death of deceased Santosh was homicidal and convicted the appellants accused Nos. 2 to 4 and 6 to 10 for having caused injuries to PW-20 and death of deceased Santosh, since accused Nos.1 and 5 died during the pendency of trial and thereby the case against them abated. Questioning the legality and correctness of the judgment 9 of conviction and order of sentence, accused Nos.2 to 4 and 6 to 10 have preferred this appeal.
We have heard Sri.H.S. Chandramouli, learned counsel for the appellants and Senior counsel Sri. Ravi B. Naik for Sri. Amar Correa for appellant Nos.2 and 3 and learned Government Pleader for the State. Perused the records and the judgment and order passed by the court below.
4. Sri. Ravi B. Naik, learned Senior Counsel taking us through the evidence on record has submitted that there are no other eyewitnesses to the occurrence, except PW-20-injured Manjunath, who lodged the complaint against 4 to 5 unknown persons. Learned counsel submitted that the prosecution failed to establish beyond reasonable doubt that it is accused Nos.1 to 10 who inflicted fatal blow upon the deceased Santosh and caused injuries to PW-20. It is also submitted that there are material contradictions in the evidence of PW-20 regarding the injuries suffered by PW-20 and as such, it is not safe to place reliance on solitary testimony 10 of PW-20 to base conviction without corroboration, under such circumstances, the learned Sessions Judge committed grave error by convicting the accused. Hence, the learned counsel sought to set aside the judgment of conviction and order of sentence and to acquit all the accused of all the charges levelled against them. The learned counsel placed reliance on a decision of the Supreme Court reported in (2003) 1 SCC 465 in the case of Joseph Vs. State of Kerala to buttress his argument.
The learned Government Pleader on the other hand referring to the evidence on record would submit that the evidence of PW-20, who is an injured eyewitness to the occurrence remained intact and as such his evidence coupled with other circumstantial evidence surfaced from the evidence tendered by the prosecution witnesses is sufficient to hold that all the appellants guilty of committing murder of the deceased and causing injuries to PW-20. Supporting the judgment of conviction and order of sentence, the learned Government Pleader would further submit that the number of injuries inflicted on the 11 deceased, injuries inflicted to PW-20, the nature of weapon used, their modus-operandi in commission of the crime establish beyond reasonable doubt that the appellants with an intention of causing death assaulted the deceased mercilessly and committed his murder. As such, the learned Sessions Judge is fully justified in convicting and sentencing all the accused-appellants. Hence, he sought for dismissal of the appeals as devoid of merits.
5. Before proceeding to appreciate the evidence of the prosecution witnesses; it would be worthwhile to place on record the gist of the evidence of each of the witnesses examined by the prosecution.
PW-1 Ganesh is a pancha to the seizure panchanama Ex-P1 under which qualis vehicle said to have been used for commission of the crime was seized in the presence of PW-1 and PW-33. But both of them have turned hostile.
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PW-2 R. Babu is a pancha to Ex-P2 for having seized pieces of number plate of qualis vehicle bearing No.KA-04- D-7774. He has turned hostile to the prosecution case.
PWs-3 and 4 Raju and Ravi are panchas to Ex-P3 in respect of seizure of long(weapon) at the instance of accused No.5-Srinivas. But both of them have turned hostile to the prosecution case.
PW-5 Govind Reddy, PW-27 Shivanna and PW-28 Venkat Reddy are the panchas to Ex-P4 whereunder the long and rod said to have been seized at the instance of accused Nos.2, 3 and 6 on 16.4.2006 based on their voluntary statements. But all of them turned hostile to the prosecution case.
PW-6- C. Kumar and PW-26 Srinivas are panchas to Ex-P5 panchanama whereunder long said to have been seized at the instance of accused No.4 on 18.6.2006 at Lumbini garden. But, they have also turned hostile.
PW-7 K.R. Harish was examined to speak about the motive for the commission of the crime i.e., alleged dispute 13 that was going between accused and the deceased in connection with milk business. But he has not supported the case of the prosecution.
PW-8 Venkategowda was the previous owner of the qualis car bearing No.KA-04-D-7774. He has been examined to speak that he had sold the said vehicle to accused No.7 due to financial difficulties and that accused No.7 was using the vehicle. But, he has also not supported the case of the prosecution. He has denied having given any statement before the police as per Ex-P7.
PW-9 Ramakrishnaiah is a head constable working in Hebbal police station, who carried FIR to the Magistrate.
PW-10 Prabhakar is a police constable working in Hebbal police station, who was deputed by the Investigating Officer to trace the accused. Accordingly, he traced and apprehended accused Umesh in Amar lodge, Majestic and produced him before the Investigating Officer.
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PW-11 Dr. N.P. Prakash, Medical Officer, Baptist hospital, Hebbal. He has deposed that on 2.4.2006 at about 1.20 a.m., PW-20 was brought to the hospital by 2 to 3 persons with a history of assault. He examined him and found that he had cut injury over the right or left arm with bleeding and abrasions on the left leg and accordingly, he issued wound certificate as per Ex-P9.
PW-12 Dr. Venkat working in Baptist hospital has deposed that on 2.4.2006 at about 3.00 a.m. a police constable from Hebbal police station came to hospital and recorded the statement of injured Manjunath-PW-20 as per Ex-P10 in his presence.
PW-13 Dr. Ranganath from Baptist hospital who forwarded medico-legal intimation to Hebbal police station as soon as injured Manjunath was brought to the hospital with a history of RTA and assault.
PW-14 Dr. B.M. Nagaraj, Professor and HOD, Ambedkar Medical college, Bangalore has deposed having conducted post-mortem examination over the dead-body 15 of deceased Santosh in between 11.30 -1.00 p.m. on 2.4.2006. He has spoken about as many as seven external injuries found on the dead-body, having issued post-mortem examination report as per Ex-P12. He has deposed having given opinion after examining M.Os.1, 2, 3 and 20 as per Ex-P13 stating that the injuries at Sl.No.1 to 7 shown in the P.M. report could be caused by M.O.1, 2 3 and M.O.-20 weapons.
PW-15 Shashidhar is the Executive Engineer who has drawn sketch of scene of occurrence as per Ex-P15 as directed by the Investigating Officer.
PW-16 Sridhar, is friend of deceased Santosh. He has deposed that the deceased was known to him, he was dealing money lending business, he used to come to his shop oftenly and that is why the accused were enquiring with him as to why the deceased was poking his nose into the matters pertaining to Kempapura village. He has deposed that on the date of the incident at about 9.30- 10.30 p.m., accused No.1 came to his house, enquired about the whereabouts of the deceased and threatened 16 him to set fire to his car if he does not furnish the information. Further, he has also deposed that accused No.1 was accompanied by 30-35 persons including one Umesh and Munna. He has deposed that he informed and cautioned Santosh not to come towards his shop as there is likelihood of quarrel, that the accused waited for Santosh upto 12 'O' clock and went away.
PW-17 B.R. Anand has deposed that deceased Santosh was known to him since five years, he was his distant relative, that there has been quarrel between one Batra and Naveen Kumar in connection with milk contract business three days prior to the murder of Santosh on 1.4.2006, in that connection Batra had approached him for settlement, so also, deceased had approached him for settlement, he called accused No.1-Jagadeesh Gowda over phone, Jagadeesh Gowda asked them to come to his farm house and accordingly, PW-17 went to Kempapura to the farm house of accused No.1.
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PW-18 Ramamurthy-younger brother of deceased Santosh has deposed about inquest panchanama over the dead body in his presence as per Ex-P16.
PW-19 Madhava has deposed that all accused and deceased Santosh were known to him. Deceased Santosh used to come to the mobile shop of PW-19 Madhav and thereby he came in contact with Santosh, Naveen, Lakshman, Seena, that he was aware of the enmity that was going on between Santosh and Naveen in connection with the milk contract. He has spoken about the sequences of events that led to murder of deceased Santosh. Further, he has deposed that on the night of the incident, injured Manjunath came to his house and knocked at his door. He had bleeding injuries and on enquiry, he informed that some unknown persons assaulted him and committed murder of deceased Santosh and that he alongwith Govind shifted Manjunath to Baptist hospital.
PW-20 injured Manjunath is the main witness for the prosecution. He has deposed in conformity with the 18 contents of Ex-P10 his statement recorded by the police while he was in Baptist hospital, on the strength of which crime came to be registered.
PW-21 Madhu has deposed that deceased Santosh, Praveen, Prakash were known to him. All of them had been to Shakti Bar, Hebbal; on the date of the incident to have dinner; they were in the bar upto 10.45 p.m. and thereafter, he alongwith Praveen went to the house and deceased Santosh and Manjunath PW-20 went to drop Prakash to his house on his Pulsar motor cycle and next day morning at about 9.00 a.m. he came to know that Manjunath has been admitted to Baptist hospital where he went and saw PW-20 and from there, he went to Ambedkar Medical College where he saw the dead-body of deceased Santosh.
PW-22 B.K. Praveen Kumar has also deposed in conformity with the evidence given by PW-21 Madhu. He is also pancha to Ex-P18 in respect of seizure of clothes of injured Manjunath.
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PW-23 Dasappa was working as head constable in Hebbal police station who shifted the dead body of deceased Santosh to Ambedkar Medical College for post- mortem examination and after post-mortem examination, handed over the dead-body to relatives of deceased Santosh.
PW-24 Puttabasavaiah is a Scientific Officer working in Forensic Science Laboratory, Bangalore. He has deposed on 24.4.2006 he examined Qualis No.KA-04-D- 7774(M.O.17). The bumper of the vehicle was missing. The missing bumper was produced before him which correctly fitted with the missing bumper of the Qualis and therefore he opined that the bumper produced is the missing bumper of the quails vehicle No.KA-04-D-7774 and accordingly issued certificate as per Ex-P20. Though he has been cross-examined, nothing has come out of it, so as to disbelieve his evidence.
PW-25 K.B. Jayanna is the Finger Print Expert. He had deposed that he examined three pieces of number plate of vehicle, wherein there was sufficient finger prints. 20 He compared those finger prints with that of admitted finger prints and found that the finger prints on the number plate were that of right little finger prints of accused Umesh and accordingly he gave opinion as per Ex-P23.
PW-26 Srinivas is another pancha to Ex-P5 whereunder long was seized at the instance of accused No.4 on 18.6.2006.
PW-29 V.S. Hiremath is the Motor Vehicle Inspector who inspected pulsar motor cycle bearing No.KA-04-L- 9691 and qualis vehicle No.KA-04-D-7774 which were seized by the police as they were involved in the crime. He has deposed after examination of both the vehicles, he gave report as per Ex-P27 wherein he opined that the accident was not due to mechanical defect of both the vehicles.
PW-30 Ravikumar. N, has deposed that deceased Santosh was known to him, he met him on the date of the incident while he was proceeding on a Bajaj Pulsar bike at 21 about 6.00 p.m. alongwith Manju, on the same night at about 12(00 hours), he was informed by the family members of Santosh that accused committed the murder of Santosh. He is a hearsay witness.
PW-31 Govindraju was to depose about the motive for the commission of murder of the deceased, but he has turned total hostile to the prosecution case stating that he does not know anything about the incident, Manjunath was not known to him and he never went to the spot of the incident.
PW-32-Satish is a photographer, who has deposed about the photographs of the spot and the dead-body taken by him as per Exs-P29 to P38.
PW-33-K. Srinivas was to speak about the seizure of qualis car M.O.17 at the Attibele checkpost, wherein accused Nos.1 to 3, 6, 8 and 9 were returning to Bangalore on 15.4.2006. But he has not supported the case of the prosecution.
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PW-34 G.H. Ranganath has deposed for having seen qualis vehicle bearing No.KA-04-D-7774 on 4.4.2006 at Railway Layout main road having no bumper and the hind number plate was broken. The police prepared panchanama as per Ex-P39 for having seized the car and obtained his signature.
PW-35 Mohan Kumar is the police inspector of Hebbal police station, who went to Baptist hospital upon receipt of Medico-legal intimation from the hospital and recorded the statement of injured Manjunath as per Ex- P10, registered the case in Cr.No.135/2006, arrested the accused, recorded their voluntary statement, seized the incriminating articles and upon completion of all other formalities of investigation, filed charge-sheet against 10 accused persons.
The Medical Officer Dr. B.M. Nagaraj(PW-14) who conducted autopsy over the deadbody of deceased Santosh on 2.4.2006 stated that he found as many as seven deep cut injuries of various sizes over the head and on the face inflicted by blunt and sharp edged weapon. On 23 dissection of the dead-body, he noticed internal injuries corresponding to external injuries Nos.1, 4 and 7 shown in the post-mortem report Ex-P12. The medical officer has opined that the injuries were anti-mortem in nature and the death was caused due to shock and hemorrhage as a result of multiple homicidal injuries sustained. Thus the evidence of PW-14-Medical Officer coupled with Ex-P12- post-mortem report is sufficient to hold that deceased Santosh died a homicidal death.
6. The next aspect to be probed into as to whether the appellant-accused committed murder of Santosh and caused injuries to Manjunath-PW-20.
7. From the perusal of evidence of all the eyewitnesses examined by the prosecution, it is evident that PW-20 Manjunath being injured was the only eye- witness to the incident as the incident occurred late night at 12 '0' clock. Immediately after the incident, Manjunath was shifted to Baptist Hospital by his friends where his statement was recorded in the 24 presence of the Doctor as per Ex-P10, on the basis of which, crime came to be registered. It is relevant to note in his statement Ex-P10, he has stated four to five unknown persons came in qualis car, dashed against the motor cycle wherein deceased Santosh and Manjunath were proceeding from behind and when both of them fell down from the motor cycle, they mercilessly attacked Santosh and committed his murder, they also assaulted Manjunath caused injuries. It is also borne out from Ex-P10 that Manjunath requested the assailants not to assault Santosh when they were assaulting deceased Santosh with long, rod etc., and at that time, the assailants also assaulted him. This shows that Manjunath had sufficient opportunity to look at the assailants who according to him were four to five unknown persons. If the assailants were known persons, there was no difficulty for Manjunath to identify them and disclose their names in Ex P-10. The very fact that he did not disclose the names of assailants in his earliest statement Ex-P10 gives an 25 impression that the assailants were not accused persons Nos. 1 to 10. He implicated the accused No.1 to 10 in his further statement recorded on 3-4-2006 in the Police Station. That itself creates doubt in the mind of the Court as to the very involvement of the accused in the murder of deceased Santosh and injures caused to Manjunath.
8. Since PW-20 could not disclose the name of even a single accused in Ex-P10 and Ex-P40 FIR, the possibility of false implication of accused No.1 to accused No.10 cannot be ruled out at the behest of persons inimically disposed towards accused. It is curious to note that on 3.4.2006, PW-20 goes to police station and gives his further statement, wherein he reveals the names of accused Nos.1 to 10, who according to him came in qualis car and assaulted deceased Santosh, caused his death and caused injuries to PW-20. In his further statement recorded on 3.4.2006, he gives an explanation that immediately after 26 the incident, he went to the house of Prasad his friend and informed him about the incident and came back to the spot of the incident. In the mean-while, Prasad came to the spot on two wheeler and from the spot, Prasad and Govind PW-31 shifted PW-20 to Baptist hospital. There was ample time for PW-20 Manjunath to disclose the names of the accused at least to Prasad or Govind, if not to police. But he did not. If we peruse the evidence of Govind PW-31, he has denied having taken PW-20 to Baptist hospital. He has been treated as hostile witness by the prosecution. During the course of evidence, it transpired that he alongwith Madhu @ Prasad shifted PW-20 to the hospital, but PW-31 has denied for having stated so. A perusal of the statement of PW-31 recorded by the Investigating Officer as per Ex-P28 on 30.5.2006 would reveal that as soon as PW- 31 came to know about the incident of assault, he rushed to Baptist hospital, he was there with PW-20 Manjunath till morning, when the police came to the hospital and enquired with Manjunath as to who 27 assaulted him, he told four to five unknown persons assaulted him and accordingly, he gave statement before the Police. Further PW-31 has stated in his statement Ex-P28 that he gave confidence to PW-20 and asked him to disclose the names of the assailants without fear and at that time, in the morning, in the presence of other friends like Shridhar, he stated that accused Nos.1 to 10 came in qualis car, attacked Santosh and PW-20. If accused Nos.1 to 10 were real assailants whose names were disclosed by PW-20 to PW-31, as a prudent person, PW-31 would have disclosed the names of accused Nos.1 to 10 to the Investigating Officer in the morning of 2.4.2006 itself. PW-31 did not disclose those names in the morning of 2.4.2006 though it is a case of murder. It appears only after due deliberations on 3.4.2006, the accused Nos.1 to 10 have been implicated at the instance of persons inimical disposed to accused. Be that as it may, having regard to the conduct of PW-20 in not disclosing the name of single accused in Ex P-10, it is not proper to 28 place reliance on the evidence of PW-20 a solitary eyewitness to the incident. At this stage, it is relevant to note that the Supreme court in (2003) 1 SCC 465 in the case of Joseph Vs. State of Kerala has observed that when the prosecution case is based on evidence of solitary eye-witness, evidence must be fully reliable so as to record conviction on that basis. Though witness is an injured witness whose presence at the time and place of occurrence may not be doubtful, but if his evidence has to be in conformity with other evidence. It would be unsafe to convict accused solely on the basis of such witness. As such, in the light of the dictum laid down by the Supreme Court in the aforesaid decision, we deem it not proper to place reliance on the evidence of PW-20 so as to base conviction.
9. If the evidence of PW-20 is not accepted and relied upon, what remains behind is the evidence of hearsay witnesses, recovery of weapon etc., But sofar as, recovery of weapons and other incriminating articles 29 are concerned, the recovery panchas PWs-1 to 8 have turned hostile to the prosecution case, meaning thereby, recovery is also not proved. Though the prosecution tried to establish the motive, the evidence let in, to establish the motive does not inspire confidence of the Court. Moreover, when there are eyewitnesses to the incident, motive looses its importance. The only circumstance that has been proved is that the finger prints of right little finger of accused No.8 Umesh were found on the number plate of qualis car as deposed by PW-25-Jayanna Finger print expert. From a stray circumstance, the guilt of the accused cannot be proved. Thus from the closer scrutiny of the evidence placed on record by the prosecution, we are of the considered view that the evidence is not sufficient to prove the guilt of the accused beyond reasonable doubt.
10. Accordingly, we allow the appeal, set aside the impugned judgment of conviction and order of sentence 30 dated 3.2.2010 passed in S.C.No.365/2007 by the Fast Track Court-IX, Bangalore and acquit the appellants accused Nos.2 to 4 and 6 to 10 of all the charges levelled against them. The bail bonds of accused Nos.2 to 4 and 6 to 10 stand cancelled.
Sd/-
JUDGE Sd/-
JUDGE *mn/-